Citation Nr: 9927133
Decision Date: 09/22/99 Archive Date: 10/05/99
DOCKET NO. 97-21 612 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. A. Herman, Associate Counsel
INTRODUCTION
The veteran had active military service from February 1966 to
February 1969. This appeal arises from a September 1996
rating decision of the Philadelphia, Pennsylvania, regional
office and insurance center (ROIC) which denied service
connection for PTSD.
The Board of Veterans' Appeals (Board) notes that the veteran
initially indicated that he wished to appear for a personal
hearing before a member of the Board. He withdrew said
request in a statement received in June 1999.
The veteran now resides within the jurisdiction of the
Huntington, West Virginia, RO.
REMAND
The record is replete with references to the veteran
receiving Social Security disability benefits. However,
there is no indication that the RO has made any attempt to
obtain his Social Security records. In claims for service
connection for PTSD, the U.S. Court of Appeals for Veterans
Claims (Court) has held that VA has a duty to assist in
gathering Social Security records when put on notice that a
veteran is receiving Social Security benefits. Cohen v.
Brown, 10 Vet. App. 128 (1997); see also Clarkson v. Brown, 4
Vet. App. 565, 567 (1993). Further, as noted by the Court in
Hayes v. Brown, 9 Vet. App. 67 (1996), the administrative
decision and the underlying medical records used as a basis
to grant Social Security benefits should be obtained from the
Social Security Administration. Thus, the veteran's Social
Security records must be obtained.
A claim for service connection for PTSD requires (1) a
current, clear medical diagnosis of PTSD; (2) credible
supporting evidence that the claimed in-service stressor
actually occurred; and (3) medical evidence of a causal nexus
between current symptomatology and the specific claimed in-
service stressor. 38 C.F.R.
§ 3.304(f). If the claimed stressor is not combat related, a
veteran's lay testimony is insufficient to establish the
occurrence of the stressor and must be corroborated by
"credible supporting evidence". On the other hand, if the
veteran did engage in combat with the enemy, he is entitled
to have his lay statements accepted, without the need for
further corroboration, as satisfactory evidence that the
claimed events occurred, unless his descriptions are not
consistent with the circumstances, conditions, or hardships
of service or unless the VA finds by clear and convincing
evidence that a particular asserted stressful event did not
occur.
Thus, the determination of whether a veteran was engaged in
combat with the enemy is particularly significant in PTSD
cases. In making this determination, consideration must be
given to the provisions of 38 U.S.C.A. § 1154(b) that
specifically allow combat veterans, in certain circumstances,
to use lay evidence to establish service incurrence of a
disease or injury by relaxing the evidentiary requirements
for adjudication of certain combat-related VA-disability-
compensation claims-both as to the evidence that a claimant
must submit in order to make such a claim well grounded and
as to the evidence necessary in order to establish service
connection of a disease or injury.
In determining whether the advantages of section 1154(b)
should be afforded a veteran, the Court has noted that the
Board "must make specific findings of fact as to whether or
not the veteran was engaged in combat ... [and] must provide
adequate reasons or bases for its finding, including a clear
analysis of the evidence which it finds persuasive or
unpersuasive with respect to that issue." The Court has
also held that a determination of combat status is to be made
"on the basis of the evidence of record", and that section
1154(b) itself "does not require the acceptance of a
veteran's assertion that he was engaged in combat".
Furthermore, the Court has held that combat status may be
determined "through the receipt of certain recognized
military citations or other supportive evidence". In this
regard, the Court has observed that the phrase "other
supportive evidence" serves to provide an almost unlimited
field of potential evidence to be used to "support" a
determination of combat status. In summary, in determining
whether this particular veteran engaged in combat,
consideration must be given to his assertions that he had
exposure/participation in combat; the fact that it was
reported that he was involved in a battle or campaign (the
Court has held that this may be a relevant consideration);
and the application of the benefit-of-the-doubt rule.
Thereafter, a direct finding must be made as to combat
status. See Gaines v. West,
11 Vet. App. 353 (1998).
If it is not determined that the veteran was involved in
combat, the Board nevertheless has a duty to assist the
veteran under 38 U.S.C.A. § 5107(a) with respect to
verification of his claimed stressors. The question of
whether the veteran was exposed to a stressor in service is a
factual determination and VA adjudicators are not bound to
accept such statements simply because treating medical
providers have done so. Wood v. Derwinski, 1 Vet. App. 190
(1991) (affirmed on reconsideration, 1 Vet. App. 406 (1991));
Wilson v. Derwinski, 2 Vet. App. 614 (1992). In Zarycki v.
Brown, 6 Vet. App. 91 (1993), the Court set forth the
framework for establishing the presence of a recognizable
stressor, which is the essential prerequisite to support the
diagnosis of PTSD. The Court's analysis divides into two
major components: The first component involves the evidence
required to demonstrate the actual occurrence of an alleged
stressor event; the second involves a determination as to
whether the stressor event is of the quality required to
support the diagnosis of PTSD. See Cohen v. Brown.
The veteran contends that he has PTSD as a result of his
experiences in Vietnam. He maintains that the nature of his
military service in Vietnam qualifies as combat related
service, and that he should be allowed to reap the benefits
of 38 U.S.C.A
§ 1154(b). While he has made no allegation of actually
engaging in combat, he says he served in areas that
frequently came under sniper attack. He states that he had a
friend that was killed in such an attack. He does not claim
to have witnessed the death of this individual.
The veteran also recalls an incident when he was involved in
a motor vehicle accident that killed at least one civilian.
During May or June of 1970, he said he was transporting
supplies from Long Binh to Tay Ninh when a truck, he was a
passenger in, struck and killed a man who was on the side of
the road. He stated the accident occurred approximately one-
and-a-half hours outside of Chu Chi and in the early morning.
He said that the military police arrived at the scene of the
accident, and that they ordered him and the driver to
continue with the convoy. He indicated that "Cargo Trip
Tickets" and the Dispatcher's Log would establish the exact
dates and times when he participated in supply convoys.
While details pertaining to this alleged stressor have
varied, the essential story has remained consistent. In
this regard, J.C. reported in January 1998 that he was the
driver of the truck that struck and killed the civilian. He
said the veteran appeared visibly shaken by the incident, and
that his behavior changed significantly thereafter.
Copies of the veteran's personnel records indicate that he
arrived in Vietnam on September 22, 1966, and was assigned to
120th Transportation Company, as a light vehicle driver. He
also appears to have participated in "Vietnam
counteroffensive Phase II." He was transferred from Vietnam
in September 1967.
When examined by VA in June 1996, the veteran reported having
a long history of drug and alcohol abuse. He endorsed poor
sleep, hyper-vigilance, an exaggerated startle response,
distressing dreams, dissociative behavior, and intense
psychological distress when discussing Vietnam. He reported
that he had combat exposure, and that he witnessed the
accidental killing of two Vietnamese men when his truck ran
over them. Following a mental status examination, the
veteran was diagnosed as having PTSD. Subsequent treatment
reports from various VA facilities also indicate that he has
been diagnosed as having PTSD.
To properly evaluate the veteran's claim, the Board finds
that an attempt to verify the veteran's claimed stressors is
warranted. The RO should contact the U.S. Armed Services
Center for Research of Unit Records (USASCRUR) to assist in
verifying the veteran's alleged stressors. The Board
acknowledges that some of the ambiguities in the record may
make any request for USASCRUR confirmation difficult.
Nevertheless, although he has the burden of submitting
evidence in support of his claim, the critical evidence may
be in the control of the Federal Government. In such
situations, the VA should be responsible for attempting to
provide or obtain the material. Murphy v. Derwinski, 1 Vet.
App. 78, 82 (1990).
Thus, in light of the need to verify whether the veteran
served in combat, whether his stressors can be verified (that
is, if combat status is not established), and whether any
verified or combat stressors are the cause of any PTSD, it is
the decision of the Board that the case be REMANDED to the RO
for the following action:
1. The RO should take appropriate steps
to contact the veteran and request that
he furnish a complete detailed
description of the specific traumatic
incidents which produced the stress that
resulted in his claimed PTSD, including
the dates, exact location, and
circumstances of the incidents, and the
names of any individuals involved.
Particular emphasis should be placed on
those incidents that the veteran now re-
experiences as alleged stressors. With
regard to the sniper attacks on his
compound and/or convoys, the following
information should be supplied: What
unit(s) was he assigned to at the time of
each incident? Was anyone injured during
these attacks? Was counter fire
employed? Was any attack known to have
been reported? Under what circumstances
did the attacks occur? Concerning the
motor vehicle accident that killed at
least one civilian, he should be asked
the date of the incident. Was the
incident reported to any official? If
so, what was the name and/or unit of the
individual that took the report? The
veteran should be advised that this
information is vital to obtaining
supportive evidence of the stressful
events, and that he must be as specific
as possible to facilitate a search for
verifying information.
2. The veteran should be asked to
provide the names and addresses of all
medical care providers who have treated
him for his psychiatric problems since
service. Based on his response, the RO
should attempt to obtain copies of all
such records not already contained in the
claims folder from the identified
treatment sources and associate them with
the claims folder.
3. The RO should obtain copies of the
veteran's complete outpatient and
inpatient treatment records from the
Martinsburg VA Medical Center (VAMC),
Lyons VAMC, Lebanon VAMC, Philadelphia
VAMC, and any other identified VA
facility since August 1996. Once
obtained, all records must be associated
with the claims folder.
4. The RO should also obtain copies of
any administrative decision and
underlying medical records relied upon in
evaluating the veteran's claim for Social
Security Administration benefits and
associate these records with the claims
folder.
5. The RO should contact the National
Personnel Records Center (NPRC) and
attempt to obtain copies of unit morning
reports, dispatcher's logs, and company
motor pool trip tickets for 120th
Transportation Company for the periods in
question. An attempt should also be made
to obtain any additional personnel
records not already contained in the
claims folder.
6. The RO should then make a
determination on whether the veteran
engaged in combat during his military
service. If the answer is in the
affirmative and his alleged stressors are
related to such combat, the veteran's lay
testimony regarding such claimed
stressors must be accepted as conclusive
as to their occurrence and the further
development for corroborative evidence,
requested below, need not be undertaken.
Adjudication of the claim should then be
undertaken in accordance with the
provisions of 38 U.S.C.A. § 1154(b).
7. In the event it is determined that
the veteran did not participate in combat
with the enemy, or that the alleged
stressors were not related thereto, the
RO should then review the file and
prepare a summary of the veteran's
claimed stressors to include a copy of
his August 1996 and February 1999
stressor statements (and any additional
information received from the veteran
concerning his claimed stressors) and
make copies of all service personnel
records. This information should be sent
to the U.S. Armed Service Center for
Research of Unit Records (USASCRUR), 7798
Cissna Road, Suite 101, Springfield,
Virginia 22150-3197 for verification of
the veteran's putative stressors. This
should include a specific request for any
motor vehicle accident reports filed by
the military police during the period in
question.
8. The RO should then carefully review
all evidence obtained pursuant to the
development requested above. In the
event these records suggest the presence
of other sources of relevant evidence,
such leads should be followed to their
logical conclusion.
9. If it is determined that the veteran
engaged in combat during service or was
otherwise exposed to a stressor or
stressors in service, he should be
afforded a VA psychiatric examination.
The claims folder and a copy of this
Remand must be made available to the
examiner prior to the examination in
order that he or she may review pertinent
aspects of the veteran's service and
medical history. All tests deemed
necessary by the examiner must be
conducted and the clinical findings and
reasoning which form the basis of the
opinions requested should be clearly set
forth.
The psychiatrist should then render an
opinion as to whether the veteran
currently suffers from PTSD resulting
from his military experiences in Vietnam.
It should be stated whether a current
diagnosis of PTSD is linked to a specific
corroborated stressor event experienced
in Vietnam pursuant to the diagnostic
criteria set forth in Diagnostic and
Statistical Manual of Mental Disorders
(DSM-IV). If a diagnosis of PTSD is
rendered, the examiner should specify the
stressor(s) upon which the diagnosis is
based.
10. Following completion of the
foregoing, the RO must review the claims
folder and ensure that all requested
development has been completed in full.
If any development is incomplete,
appropriate corrective action should be
implemented. When the requested
development is complete, the RO should
review this claim. If the benefit sought
remains denied, the veteran and his
representative should be furnished an
appropriate supplemental statement of the
case and afforded a reasonable
opportunity to respond.
Thereafter, the case should be returned to the Board for
further appellate consideration, if appropriate. The veteran
need take no action until he is further informed. The
appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999). The purpose of this REMAND is to obtain additional
information and to ensure due process of law. No inference
should be drawn from the Remand regarding the final
disposition of this claim.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
BARBARA B. COPELAND
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1998).